Koowarta: constitutional landmark, transition point or missed opportunity?

Abstract

Beyond the immediate significance to Wik-Mungkan people and Aboriginal peoples more generally, Koowarta v Bjelke-Petersen was an important constitutional case for several reasons. First, it confirmed that the Australian parliament could enact national human rights laws binding on the states. Second, the decision showed how close the High Court of Australia in the early 1980s came to revisiting the propulsive centralism of the Engineers decision, a central tenet of Australian constitutional doctrine, but also exposed the elusiveness at the heart of the pro-federalist interpretation of the external affairs power, thereby setting the stage for the affirmation of central government power a year later in the Tasmanian Dam case. Third, the court failed to persuasively address credible arguments that the races power in s 51(xxvi) of the Constitution could support a national law prohibiting racial discrimination. The Koowarta decision was, in these three respects, simultaneously a landmark, a turning point and a missed opportunity. In a contemporary sense, when alterations to the Australian Constitution in respect of Aboriginal and Torres Strait Islander peoples are under active consideration, Koowarta underlines the importance of choosing amending words carefully – history suggests the court may not, of its own volition, bring a non-discriminatory mindset to the question of constitutional interpretation.